Patent Lull

MAybe it is time for some intellectual reflection on the current stage of patent litigation in Europe. Those reflections come from a idiot savant, as we are out of patent litigation in Europe for some time now and much what is being brought up may also have to do with being out of the litigation loop and hence may have colored our view on what’s going on in Europe at this time. For years patent litigation in Europe was seen by many as convoluted, cumbersome and fragmentized. Rightfully so. The patent practitioners, in response, brought creative solutions and innovative ways to expedite proceedings, to improve predictability and make Europe a true “single”  jurisdiction for patent litigation. Who can’t remember the Dutch introducing the cross border practice, now virtually dead, where – in the absence of a single European jurisdiction and a Community Patent that never came to life- patent owners got a chance to go to one court for a EU-wide injunction. That were between the late 90’s and 2001-2005.

After the cross border came the creative use by-again Dutch attorneys – of the European “Detention Order”, using the EU Customs Regulation against counterfeit to hold allegedly patent infringing products at the EU border. Taken by surprise, the defendant or accused party had little response to this new tool in the litigation basket of the patent owner. Now attacked as a misuse of the regulation, forcing the EU to see if more stringent use of the customs regulation would be in order. More like the use of the ITC Section 337 investigation in the US, “talk first, then hit”, rather than the reverse, EU system, where you could seize goods first then had to defend this before a court (if it ever came that far, a practice cleverly used by companies like Sisvel enforcing their mp3 patents).

But just how much development is there in European patent litigation? Nothing less than a “patent lull” I would say, no major developments, no progress with the much debated Community Patent, despite stories that “consensus” has been reached, which so far did lead to nothing.

UK is still regarded as the most critical of all EU courts when it comes to validating the Munchen delivered EU patents, Germany still delivers solid and steadfast decisions, but frequently 180º opposite to what their UK counterparts deliver. The Hague, once the centre of patent rejuvenation is becoming the Center of Patent Lull, and patent practitioners in The Netherlands have not reinvented their creativeness. The new generation lawyers are bright followers of a common path which brings no news in European patent litigation. It’s as unpredictable as it used to be, many patent owners still have to go for multiple jurisdictions with conflicting outcomes, timing in EPO oppositions is still a problem.

Will Europe ever come out of this comatose stage of non-action and continuous talking about a single patent system? I am afraid 2010 will be a continuation of the Great Patent Lull.

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